BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100029031 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his under other than honorable conditions (UOTHC) discharge to a general discharge.

2.  The applicant states his wife was in New York and he was absent without leave (AWOL) in the interest of keeping his family together and maintaining a relationship with his son.  He thinks that with different guidance from his noncommissioned officers (NCOs) he might have made a better decision.  He regrets not finishing his military service but, nevertheless, feels that his life has been honorable and civic minded.  He also states in a self-authored letter that:

* during the past 17 years he has not forgotten his short-sighted actions
* still, he has made a decent life by becoming a reliable repairer of office, medical, and other technical machines
* most recently he has worked on General Electric's wind turbine generators
* he has returned to school, earned an associate's degree and he will start on a baccalaureate in environmental science
* he hopes for employment in the National Park Service and a discharge upgrade will help
* his family eventually fractured but he is remarried and his eldest son now resides with them
* his son is a particularly well-rounded high school senior who plays in the band, runs cross country, and will go to college to major in forestry biology


3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant served briefly in the Army National Guard.  He enlisted in the Regular Army on 13 November 1992 in pay grade E-2.

3.  The applicant was AWOL from 2 April to 19 May 1993.  The day he returned from AWOL he submitted a personal statement to the effect that his military training made him aggressive.  His wife was pregnant and they would get into fights and he would physically abuse her.  He also related that he had spoken to his chain of command about "exiting military service" and he was told that "exiting was not an option."

4.  When charges were preferred for the AWOL offense the applicant consulted with counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated that he understood the elements or the charges against him and admitted that he was guilty of at least one offense for which a punitive discharge was authorized.  He also acknowledged that he would receive a UOTHC discharge and that he understood that he would be deprived of many or all Army benefits and that he might be ineligible for veterans benefits administered by the Department of Veterans Affairs (VA).  He stated that he understood that he could expect to encounter substantial prejudice in civilian life because of the discharge.  He indicated that he had received legal advice but that the request had been made voluntarily and that it reflected his own free will.


5.  The applicant also submitted another statement to the effect that the training made him aggressive, he and his wife would argue, and he would physically abuse her.  This went on for approximately 3 months.  The applicant claimed to have discussed these issues with his platoon sergeant, first sergeant, and company commander.  The commanding office said it wasn't his problem if the applicant beat his wife.  They refused the applicant's request for referral for a mental health evaluation.  "Approximately a week and a half later I got my check and left.  I turned myself in so I could put the incidents that occurred over the past 7 months behind me." 

6.  The platoon sergeant reported that he had talked with the applicant about problems at home.  He had tried to get the applicant help but the applicant went AWOL before help could be given.  He could not recall the applicant asking for a mental health evaluation.

7.  The applicant's chain of command recommended approval of his request for voluntary discharge with a UOTHC discharge.  The separation authority approved those recommendations and on 8 September 1993 the applicant was so discharged.  He had 9 months and 8 days of creditable active service during the period under review with 47 days of time lost due to AWOL.

8.  There is no indication the applicant ever applied to the Army Discharge Review Board to upgrade his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.



DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, he has led a good life and believes he has earned an upgrade of his discharge.

2.  The applicant submitted no documentation to substantiate his request.  Nevertheless, the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant's characterization of discharge is commensurate with his overall record of military service.

3.  In view of the foregoing there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20100029031



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